|Case Name||Reckitt Colman of India Ltd. v/s Kiwi T.T.K. Ltd.|
|Case Number||I.A. No. 996 of 1996|
|Court||Delhi High Court|
|Bench||Justice SK Mahajan|
|Relevant Act/Section||Civil Procedure Code, 1908 – Order 39 Rules 1 & 2|
|Author of the case brief||Praher Vaidya|
The plaintiff company is engaged in manufacture and sale of consumer products and one of the products of the plaintiff is liquid shoe polish being manufactured and marketed by them under the name and style of Cherry Blossom Premium Liquid Wax Polish. Shoe polish in the liquid form is stated to have been introduced by the plaintiff about 10 years back and it comprises of natural wax called Carnauba wax allegedly being imported from Brazil for purposes of making this polish. The defendant is also engaged in the manufacture of polish and one of the brand being manufactured and marketed by the defendant is “KIWI” brand of liquid polish. The defendant with a view to promote its product is displaying an advertisement through the electronic media. The advertisement of the defendant shows a bottle of “KIWI” from which the word “KIWI” is written on the white surface which does not drip as against another bottle described as “OTHERS” which drips. The product shown to have been flowing from the bottle of “OTHERS” is from a bottle marked “Brand X” and allegedly looks like the bottle of the liquid shoe polish of the plaintiff for which the plaintiff allegedly has a designed registration granted in 1993. The bottle of “OTHERS” marked “Brand X” also has a red blob on its surface which allegedly represents “CHERRY” which appear on the bottle of the plaintiff’s product. Besides the advertisement in the electronic media, the defendant had also been circulating a “point of sale” poster material at shops and marketing outlets selling similar products. It is alleged that in the said poster material circulated by the defendant, the bottle shown as “OTHERS” with a faulty applicator allegedly resembles the applicator of the plaintiff. That being aggrieved by the aforesaid advertisement of the defendant in the electronic media as well as “Point of Sale” poster material at the marketing outlets, the plaintiff has filed the present suit for an injunction restraining the defendant from advertising the products in the manner they had been doing. Along with the suit, an application under Order 39 Rules 1 and 2 Civil Procedure Code has been filed for ad interim order of injunction straining the defendant from displaying the impugned advertisements and issuing “Point of Sale” posters till the decision of the suit.
Arguments of the plaintiffs:
- The said advertisement in the electronic media, as well as circulation of “Point of Sale” poster material, is clearly designed to malign the product of the plaintiff. The said claim of the defendant is alleged to be completely false and it is alleged in the plaint that the defendant by the said advertisement has been making a false claim that its product does not drip hut the products of “OTHERS” (Brand X) do drip. The case of the plaintiff, therefore, is that in case the advertisement is allowed to be circulated in the electronic media or by circulation of “Point of Sale” posters, the same shall not only damage the plaintiffs market share but would also cause irreparable loss to its reputation, goodwill, brand, equity, etc. The advertisement is also stated to be defamatory and malicious and is bound to create an adverse impact upon the consumers. The defendant cannot be allowed to disparage the goods of the plaintiff by issuing the impugned advertisements.
- Carnauba is the hardest wax and is four times costlier than Montana, which is used by the defendant and Montana is used only as a substitute for Carnauba. The defendant is totally misrepresenting the consumer that it has more natural wax than the product of the plaintiff and this representation, according to him, is wholly derogatory and disparaging to the product of the plaintiff. The liquid polish bottle is not a writing instrument and the intention of the defendant in writing with the bottle is malafide.
Arguments of the defendants:
- There is nothing disparaging or defamatory conveyed through the said advertisements against the plaintiff, as no reference whatsoever has been made to Cherry Blossom Premium Liquid Wax Polish in any of the advertisements in question. In the alternative, even if a reference in the advertisement can be related to the plaintiff, there was nothing unlawful about the statement made by the defendant in the said advertisement as it was a true statement of fact and substance and, according to the defendant, no injunction can be granted against the said defendant. It is alleged that the defendant had not made any false or misleading statement for the following reasons:
- The claim made by the defendant is that “KIWI has more natural wax than any other brand or liquid shoe polish. Kiwi is richer and thicker and gives you better shine”.
- It is correct that more natural wax leads to better shine.
- It is correct that Kiwi liquid shoe polish has 2.07% of more natural wax than Cherry liquid shoe polish.
- The laboratory test establishes that viscosity of Kiwi Classic Instant liquid shoe polish is 3.9 centistokes as compared to 2.8 centistokes of Cherry liquid shoe polish.
Issue to be decided:
- Whether the product which has been shown as others is a product of the plaintiff or can make the general public believe that this product belongs to the plaintiff or in any way can be connected with it?
- At the outset, the defendant has agreed to withdraw the “Point of Sale” posters which were circulated at the retail outlets and the markets and has also agreed to delete the red blob on the surface of “Brand X” which, according to the plaintiff, represent the Cherry on the bottle of the plaintiffs products.
- Five principles to decide as to whether a party is entitled to an injunction are as under:
- A tradesman is entitled to declare his goods to be best in the words, even though the declaration is untrue.
- He can also say that my goods are better than his competitors’, even though such a statement is untrue.
- For the purpose of saying that his goods are the best in the world or his goods are better than his competitors’, he can even compare the advantages of his goods over the goods of others.
- He, however, cannot while saying his goods are better than his competitors’, say that his competitors’ goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible.
- If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.
- The settled law on the subject is that a manufacturer is entitled to make a statement that his goods are the best and also make some statements for puffing of his goods and the same will not give a cause of action to other traders or manufacturers of similar goods to institute, proceedings as there is no disparagement or defamation to the goods of the manufacturer so doing. However, a manufacturer is not entitled to say that his competitor’s goods are bad so as to puff and promote his goods
- Though with the presence of the red blob on its surface, an impression may be gathered that this red blob is a “CHERRY” which appears on the bottle of the plaintiff as well, however, after the defendant had made a statement in Court that it will move the red blob appearing on the bottle, a consumer who watches this advertisement on the electronic media only for a fleeting moment may not get the impression that the bottle is the bottle of the plaintiff.
- At this initial stage, the court did not decide the question as to whether the product of the defendant is better than that of the plaintiff or it has more natural wax so as to justify the issue of the advertisement, as these are the questions which will be decided during the trial of the case.
- Not going into the question as to what is the effect of the issue of other advertisements of a similar nature by the manufacturer of other products. Prima-facie, the court is of the opinion that after the removal of the red blob from the bottle of “Brand X”, the same cannot be linked to the product of the plaintiff and consequently, there will not be any question of disparaging or defaming the product of the plaintiff.
- In view of the foregoing, the court modified the interim order passed to the extent that they restrain the defendant from in any manner printing, circulating or distributing the point of sale posters at the consumer outlets or in the market place, where such goods are sold or in any manner publishing the impugned advertisement on the electronic media or at any other place with red blob on the bottle of “Brand X”. The application was disposed of.